By Fabian Lyngdoh
In the formation of the States of Nagaland and Mizoram, provisions were made that no Acts or Laws passed by the Union Parliament shall have legal force in the States with regard to the religious or social practices; customary laws and procedure; civil and criminal justice so far as these concern decisions relating to customary laws and the ownership and transfer of land and its resources, unless specifically applied to it by a majority vote of the Legislative Assemblies of the States. These provisions define the cultural and territorial bases of these States and their Governments. But in Meghalaya this kind of provision is provided in the constitution of the Autonomous District Councils, and not in the formation of the State. The territory of the Meghalaya comprises of the territories of the erstwhile United Khasi Jaintia Hills Autonomous District Council and the Garo Hills Autonomous District Council, and hence much of the territories comprised within the cantonment and municipality of Shillong. The State has a defined territory but without territorial authority as it has to borrow the cultural and territorial bases of the ADCs for its existence. Therefore in Meghalaya, we have a State Government which stands for modern democratic system, as well as the ADCs which stand for indigenous traditional system, serving the needs and interests of practically the same territorial area and the same people. This simultaneous existence of different systems of governance concerning the same people and the same territory has brought about what academics call ‘institutional dissonance’ in Meghalaya.
It is opined that the functions of the District Councils have been curtailed because of legislative and administrative handicaps in their relation with the State Government. It is felt that the State Government in Meghalaya always attempted to circumscribe and marginalize the District Councils’ powers or even to destroy their existence altogether. It is also felt that Paragraph 12A of the Sixth Schedule has circumscribed the legislative powers of the ADCs in Meghalaya. But in principle, unless the State Government takes undue advantage of its provisions, this paragraph has a rationale to exist for facilitating public interests and as a safeguard against infringement of fundamental human rights of citizens, on grounds of the Sixth Schedule. Para 12 (A) says that if any provision of law made by the ADC is repugnant to any provision of law made by the Legislature of the State, then the latter supercedes the former. Though the laws made by the State legislature may prevail in instant cases, but the laws made by the ADC do not stand repealed. This provision does not entitle the Executive Government of the State with veto powers to reject wholesale the Bills passed by the ADCs on mere supposed or perceived repugnancy. It is a domain of the Courts to judge the extent of repugnancy in particular litigations where the laws of the ADCs and State laws happen to be in conflict.
It is also opined that the District Councils are autonomous only in name while they are fully dependent on the State Government in all respects because there is no clear-cut demarcation of functions between the State Government and the District Councils. It seems that there is also a confusion of purpose and function between the two authorities. In 2013, the Government of Meghalaya rejected the Khasi Hills District (Nomination and Election of the Syiem, Deputy Syiem and Headmen of Langrin Syiemship) (Third Amendment) Bill, 2013 with information to the KHADC that according to the view of the Law Department, the principal Act was intended to serve and protect the indigenous Khasis in Langrin Syiemship, while on the other hand the proposed amendment by the KHADC to delete the phrase “both of whose parents are Khasi by birth who”, from Section 2(d) of the principal Act would have a disastrous effect to the indigenous Khasis of the Syiemship. This episode shows that the State Government is all out for the preservation of the customs of the indigenous people, while the District Council seems to lack that concern. But it may also indicate that the State Government is usurping the authority of interpreting and protecting the Khasi social customs which is the domain of the District Council according to paragraph 3 of the Sixth Schedule.
In the contest for authority, the attempts of the Central and State Governments to provide legal framework to the grassroots self-governance institutions in the State have always been resisted by the ADCs and traditional institutions on the ground that it would marginalize the power of the ADCs, and hence, destroy the existing traditional customs and usages of the tribal people. The dynamism of society is badly affected by this tug of war. The truth in this situation does not rest with the proclaimed sacredness of customs, or with the agenda of party politics, but on the free will and actual needs of the people at the grassroots. The people are in need of socio-economic development and civic welfare, as well as human rights in a democratic social order which the Government can provide. They also feel the need for preserving cultural identity and territorial right which the District Council is empowered to safeguard.
The domain of the District Council is with conservation of tradition, and guidance to the evolution of customs with regard to landholding system, and the maintenance of the cultural order of the tribal society; and it has the authority to make laws in these regards. The proper domain of the State Government is with socio-economic development and civic welfare of the citizens; and in the maintenance of the social order in the legal context; and it has the authority to make laws with regard to these matters, which the ADCs and traditional chiefs have no authority to interfere. In 2006, the Government of Meghalaya made the ‘Meghalaya Employment Guarantee Scheme (MREGS) 2006’, with the objective to implement schemes for providing guarantee of employment, and to create durable assets and strengthening the livelihood resource base of rural poor, as per NREGA Guidelines. Since Part Nine of the Constitution does not apply to Meghalaya, Village Employment Councils (VECs) are constituted where every male and female heads of each household is a member. The Area Employment Council (AEC) is constituted with representatives from a cluster of VECs, where women members shall not be less than 30 per cent. All references in the NREGA Guidelines to Gram Panchayat imply the AEC; and all references to the Gram Sabha imply the VEC. The people have been cooperative with this arrangement, and the implementation of NREG schemes has on the whole been quite successful.
However, it is felt that grassroots development councils should be provided with constitutional status and perpetual succession, since it is not proper to constitute such councils every time and for every emerging project or mission on the basis of mere executive guidelines. The State Government of Meghalaya has contemplated to enact its own law to regulate grassroots governance institutions at the village or locality level on democratic lines; and it has the authority to do that. Any village which refuses to abide by the democratic guidelines would not be entitled to avail development schemes. It is as simple as that. But it is also felt that such bodies should concern only with the maintenance of the legal order, and for the purpose of implementation of socio-economic development schemes and civic welfare administration, and not as authorities over tradition and customs regarding landholding system and the cultural order of the people. What the people in the Khasi and Jaintia Hills are deadly against, is the taking-over of the territorial authority over the land by the Government. They still prefer the supervision of the traditional authorities along with the District Council on this matter. The problem at hand is how to invent a mechanism which can combine the function of the District Council and the function of the State Government in a single governance institution at the village or locality level so as to free the people from the dilemma of institutional dissonance in the State. This article is intended to invite creative minds to join hands in devising the rescue operation.